On The Functional Equivalent Approach In E-Commerce Legislation

The emergence of e-commerce brings great changes and challenges to the traditional commerce as well as to the traditional legal system. E-commerce makes e-files replace paper files, which contradicts the traditional paper-based legal system. This pushes to a need to study on the related legal problems, to perform the related legal system, and to provide a fine legal environment for the development of e-commerce.The Functional Equivalent Approach is created by UNCITRAL. It bases on the functions of the traditional written form, making the electronic date that bears the same functions to be shared with the same legal effect. As a reply to the challenges brought by e-commerce to the traditional law, the Functional Equivalent Approach is the best way to solve the problem about the written form of the electronic data. Nations of worldwide absorbed it as the basic legal method into the related domestic e-commerce law. Chinese Electronic Signature Law also took it as the legislative base to solve the problem of the signature brought by e-commerce.The research topic of this paper is the Functional Equivalent Approach in the e-commerce legislation. Starting with the concept of e-commerce, the Functional Equivalent Approach is introduced by the analysis of the challenges proposed by the paperless form of e-commerce to the traditional paper-based law. On the basis of the meanings, the realistic and theoretical significances, the application of Functional Equivalent Approach is comprehensively analyzed with the UNCITRAL Model Law on Electronic Commerce as the angle of view. The written form, signature, original copy, weight of evidence, and storage requirement of the electronic data are concluded. By the comparison of the theories and practices at home and aboard, legislative suggestions for the application of the Functional Equivalent Approach in Chinese law are presented.Basing on the obstacles to the application of the electronic contract by the existent legal system in our country, innovations are presented in the paper. By the analysis of the actuality and reasons why Chinese contract law does not constitute the functional equivalent approach, this paper suggests to perform Chinese contract law by absorbing the functional equivalent approach or to constitute Chinese electronic contract law on the basis of the Functional Equivalent Approach, which is of great importance and significance.